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Question DetailsAsked on 11/24/2016

Landscaper has his costs in many various emails, rather than a clear invoice, & thinks I still owe him more money to have him finish my project. This has caused me confusion & frustration... I've recently itemized all his scattered M&L costs onto a spreadsheet, where it seems clear I’ve paid in full, including remainder of work to be completed.He’s not accepting that he's made a mistake, & we've parted ways. He picked up his tools, as agreed, but unfortunately, he took some of my retaining wall with him, apparently as partial payment!?I've made a few attempts to prove to him that I've already paid for retaining wall & top caps in full, & request that he brings back my blocks & completes the full wall. He politely refuses unless I pay him.We also met for 2hrs, going through every line item on the spreadsheet I compiled, & I thought we were in agreement that I've paid in full, but he keeps trying to think of something that must be missing!? ($8,890-$8,925 deposits=$35 balance) Help!

2 Answers

Couple of resolution options - from "nice" to "nasty". Unfortunately, sounds like you did this without a contract and firm price, but were using a time and materials approach - BAD mistake, because that leaves the ball in his court as far as bumping the cost up - either due to inefficiency, bad estimating of the scope, or artificially inflating the price because he is not honest. Also, letting him get away with eMails rather than formal invoices (which could have been eMailed once prepared) promoted this informal billing method of his.

You should always go for a firm, fixed cost contract whenever the scope of work can reasonably be established up front, which would be the case with almost all landscaping jobs assuming you were able to identify exactly what you wanted and spelled out the scope of work up front. The type of customer who is wishy-washy or wants to change the scope along the way as the job develops certainly exists, and while that can be done (within reason) with change orders on a fixed-price contract, it can quickly degrade into a constant-changes situation like with the lady client of Tom Hanks playing the architect in "Sleepless in Seattle". That type of client commonly pays a lot more for their indecisiveness or incomplete initial determination of the exact scope of work in that case, which is OK if that is what they want. But in that case the time and materials or cost-plus nature of the arrangement should be established in the contract, and the contractor is a fool if it does not provide for (and he submits) frequent progress payment invoices for the work as it progresses - and he should also get a substantial advance payment that allows him to stay up with if not ahead of the accrued charges so he is sure he gets paid. I have seen several contractors get severly burned (one for over $300 million on a major third-world industrial construction job) when the cost-plus actual cost ran several times the original estimate because of constant revisions by the client which were not documented by mutually signed change orders, then at the end the client expected the total bill to equal the original estimate. It is amazing how many clients expect that they can add to scope or change things already in construction and not have to pay more for it.

Options:

1) First you could send a certified mail signature-required return receipt letter (which gets more attention than eMails and lets him know you are serious) - keeping a copy yourself with mailing and return receipts of course - stating that because of the disagreement you are demanding he provide an all-in-one cumulative line-item itemized invoice and statement of ALL charges and payments as he sees it - you could provide a copy of your spreadsheet if you wish stating that is your picture of the situation. Of course, if the contract (you do have a contract, right ?) was for a fixed amount, then all you need to do is reference that amount plus the amount of any approved change orders, state the payments you have made, showing that leaves a total amount overpaid or remaining to be paid upon completion, as applicable. And state the date (contractual date, if there is one and not already past) you expect the work to be completed. This puts the ball in his court to respond back with a full project detailed invoice.

2) More involved approach which puts the ball in his court still but more in your control because you are presenting your side of the picture for him to refute rather than asking him to tell you what he thinks is owed. Which approach you take depends partly on whether you think he is being honest (from his persepective), whether he is perhaps not real competent with math, if there is any language barrier involved, etc.

Since you have been sitting down with him but not dealing in writing evidently (other than the spreadsheet) - perhaps the next step could be you sending the spreadsheet to him with a certified return receipt signature-required letter stating you believe this is the full amount due on the work (including on the spreadsheet only the charges you agree with), and stating and deducting the amount paid to date, showing the amount due or overpaid. This $ amount forthe work may be tough to figure out since he has not actually finished the work - but if you can present what you are prepared to call fair and demand - via return receipt signature required certified mail - then you have written proof of your demand. Also, in that letter, demand either completion (in which case the spreadsheet would presumably include the unfinished work and be stated as an "upon completion" statement of agreed charges), or show only to-date assuming termination of the contract at this point. And be sure to include adjustments for materials taken away or left on site as may be applicable or desired (like if you want the wall materials returned as stock).

If you just want to get rid of him, then you need to show amounts only for what you agree to up to this time for work actually completed, and confirm that he has left the job and that HE is abandoning the contract.

In any case, signed and dated lien releases from him and any substantial suppliers and any subcontrators should also be provided to you by him before you and he sign (in conjunction with handing over refund/final payment as applicable) a contract termination agreement or a final job completion invoice showing paid in full, as applicable.

3) Third option, which could be substituted for the first or second if you feel this is likely to go nowhere and you want a bigger hammer, is to have an attorney send the letter to him stating amounts paid, contracted amount, amount due upon completion or amount overpaid, and demanding completion and any refund due. Or stating the $ amounts you feel are appropriate for work completed and stating you intend to terminate the contract for nbon-performance. (Discusss with attorney, but normally you do not want to actually terminate at this point because that can scotch any potential recovery or job completion through his Bond if needed). Whether you go to an attorney or not depends on whether you think the contractor will come around without a big stick being wielded, and of course the $ amount in dispute, because just a letter will normally run $250 or so - and of course any follow-up involvement by the attorney another $250/hour or more commonly so for small jobs more than just an attorney's letter to make it clear you are serious about this may not be cost effective.

4) Another option, which could be #1 or #2 in order rather than #4, is if he will agree to dispute resolution there are many sources for that out there. Or since the $ appears to be the issue perhaps mutually agreeing to an accountant to sit down with the eMails and your spreadsheet and go over them item by item with the accountant and let him/her figure what the balance due or overpaid is. You would have to resolve up front with the contractor whether he and you want to try to have him complete the job, or call it quits at this time.

4) Next "nastier" step is to, since he failed to complete the work as agreed (and I hope you had a contract with specified project cost, which it sounds like maybe you did not so that might scotch this option), is to call his Bond - call on the bonding company to complete the work for the original (asmodiied by any approved change orders) specified total contract amount.

5) Next nastier step, to put a lot of pressure on him but probably totally eliminate the possibility of him finishing the job for you, is to threaten to (and ultimately do it if he does not come around) call the police (assuming you did not observe or stand by and let it happen, which would imply your approval) about him taking part of the retaining wall down and away, assuming it was "installed" rather than just stockpiled materials (which are a grayer area with regard to the theft issue) - making it a criminal theft issue. Generally, once on-site, a contractor cannot take materials away without legal authority like enforcing a lien. His tools and equipment he can take at any time during the job or at a shutdown unless YOU file a lien against him to hold them because he owes YOU money - a rare thing for a customer to do.

6) You can also, though except in a very few states with contractor fraud/failure to complete compensation funds does not help you recover any money, file a complaint with the state licensing board, if he was doing this job as a licensed contractor OR was unlicensed but should have been under state or city law/ordinance. You can also file a complaint with the state or local consumer protection agency or division of the city or district attorney's office, and also can file a complaint with the city or county licensing board regarding his business (as opposed to contractor's) license. These rarely help you directly, but can help get him off the street so others are not hurt by his poor performance in the future. Such a complaint also definitely gets his attention because it putshis business (or at leat the ability to function legally) at risk and may serve as an impetus to get him to agree to a settlement on the condition that you will notify the applicable agency that your dispute has been resolved.

7) And of course, an appropriate Review on Angies List and maybe other similar sites after all is said and done - but don't do this DURING the process because that is like throwing gasoline on a fire and will eliminate any chance of his cooperation if he sees it or hears about it

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On the $35 overpayment (apparently from your spreadsheet) - if you can get him to agree that those numbers are good and total for the job, I would let him have the $35 overpayment provided the work is completed satisfactorily, and not make an issue of it - with the proviso he agrees that is the TOTAL project cost.

On the issue of him bringing back the blocks and completing the wall - he wants you to pay him before he does so evidently (and sounds like he wants more $ than you think is due), so that option sounds like it is out unless someone can convince him that you have already paid all that is due, or you agree more is due upon completion. Even if you still owe a bit at the end, paying in full or nearly in full before completion is a bad idea - leaves him zero incentive to finish the work in a timely manner - or maybe at all. If that issue is a hangup, perhaps (if you can agree on total amount to be due to you or to him upon completion, you might have to arrange with an escrow company for those funds to be escrowed pending completion and acceptance of the final work by you, then the escrow company turns over the funds. Costs a bit in escrow fees of course, but might eliminate the pay-first, work-first issue because the funds will be known to exist and being held in escrow.

This is Chris in Member Care. Thanks for your interest in Angie's List!

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